On 15 December 2020, a group of leading scholars and experts from Canada, USA, and Ireland involved in the global campaign to end Myanmar’s genocide of Rohingyas held a legal roundtable, jointly organised by the Free Rohingya Coalition and FORSEA.
Leading scholars’ consensus was loud and clear: neither ICJ nor ICC, in and of themselves, will deliver Rohingyas from their decades-long hell – namely Myanmar’s institutionalized persecution of their community – protected under the Genocide Convention. In their assessment, Myanmar is persecuting this targeted ethnic group, within their historical and demographic pocket along the Bangladesh-Myanmar borderlands with the discernible intent to physically destroy them in whole or in substantial part.
Among the panellists were Gregory Stanton, past-President of the International Association of Genocide Scholars and the founding President of Genocide Watch whose 10-stage-model of genocide is widely used by scholars and activists to understand genocidal destruction of national minorities around the world; a US legal expert on genocide prevention, Dr Katherine Southwick, who previously worked in the Prosecutor’s Office at the International Criminal Tribunal for the former Yugoslavia and who now serves as an independent advisor to the US Holocaust Memorial Museum in Washington, DC; Michael A Becker, former Associate Legal Officer at the ICJ who now teaches international law at Ireland’s Trinity College, Dublin and who specialises in international commissions of enquiry and fact-finding missions; and Professor John Packer of the Faculty of Law at the University of Ottawa in Canada who served as assistant to the first UN Special Rapporteur on the situation of human rights in Myanmar in 1992-1993.
Dr Maung Zarni, FORSEA co-founder and a UK-based non-resident fellow with the (Genocide) Documentation Center of Cambodia, moderated the discussions which were broadcast LIVE on the Free Rohingya Coalition Facebook page.
In his introductory remarks, the Burmese host called the panel’s attention to the fact that Bangladesh has embarked on the widely condemned “coercive relocation” of targeted 100,000 Rohingya refugees to an unsafe and isolated island called Bhasan Char. Zarni attributed this widely criticized move by Dhaka to the latter’s frustrations over Myanmar’s palpable lack of any genuine political will to repatriate nearly 1 million Rohingya survivors who fled the past waves of genocidal purges and communal destruction by Myanmar government troops over the last 40 years. More pertinent to the discussion, he pointed out the absence of positive impact, or behavioural, or policy shift among Myanmar leaders as the result of international legal efforts to hold to account both Myanmar as a state party to the Genocide Convention and individual leaders such as the senior and command generals and civilian and religious leaders such as Aung San Suu Kyi and the Saffron-robed monk Wirathu.
With admirable clarity, Michael Becker, formerly a legal officer at the ICJ, gave a very likely time-frame for the various stages of The Gambia vs Myanmar, the genocide case against Myanmar. The former ICJ legal staff member raised the possibility of Myanmar resorting to tactics designed to delay the ICJ case, for instance, repeating its tried and failed challenge of the Court’s jurisdiction over the case, or dismissing and discrediting Gambia’s evidence of genocidal intent which so far rested primarily on the four reports of the United Nations Human Rights Council’s International Independent Fact-Finding Mission on Myanmar, and presenting the “alternative facts” gathered by Myanmar’s own official International Commission of Enquiry established by Aung San Suu Kyi, Myanmar Agent in the ICJ case.
Becker also cautioned against third country interventions in The Gambia vs Myanmar in support of Gambia, such as has been declared by Canada, The Netherlands and Maldives, all state parties to the Genocide Convention. In his view, while such interventions have potential advantages (notably political and symbolic value as well as possible alternative paths to finding Myanmar in breach of its obligations), there is the risk that uncoordinated interventions may muddle the record or introduce arguments which undermine one another.
The two other legal experts, John Packer and Gregory Stanton, expressed a different type of concern. Examining the past ruling in the Serbia vs Bosnia case where the ICJ ruled that the state of Serbia (under Milosevic) was not guilty of committing a genocide, but only guilty in its state failure to prevent the genocide from being committed against Bosnian Muslims (Bosniaks). In Stanton’s view the Serbian state’s involvement in the scale of mass murder and destruction against Bosnian Muslims – not just in the infamous Srebrenica but in many different locations – should have prevented the ICJ from reaching that “not-guilty” ruling.
Stanton argued that the court could repeat that utterly incorrect ruling against Gambia’s genocide case: Myanmar’s Canadian lawyer William Schabas, also past President of the International Association of Genocide Scholars and former colleague of Stanton, was pushing the same but false reasoning that prevailed in the Serbia vs Bosnia case. According to this exclusivity of genocidal intent, the intent to criminally deport or carry out the forced relocation of targeted ethnic community from one region to another, or across national boundaries necessarily precludes the other intents, for instance, the intent to physically destroy the victim group. Indeed, a multiplicity of intents and motives are typically present in human deeds, virtuous or criminal. To argue that when one intent is present other intents cannot be equally valid is nonsensical and anti-empirical.
Stanton and colleagues had previously published research findings on the disingenuous uses of the term “ethnic cleansing”, a term the late Milosevic used as a spin against the genocide charges in Serbian case, an acceptable speech act of “bleaching” genocide.
In addition, Stanton recalled a personal conversation with the former ICTY Prosecutor Carla Del Ponte from whom he learned that she had received unequivocal evidence of intent to commit genocide but chose not to share it with the ICJ “because they didn’t ask for it”. Specifically, she had received confidentially from the US Government (intelligence services) the unredacted communications of Serbian military leadership; if that had been known even informally by the ICJ it could have requested the evidence (since the ICJ had only ever seen redacted texts). Perhaps there was informal communication between the ICTY and ICJ – located near each other in the same Dutch city of The Hague – and perhaps the ICJ simply lacked the initiative, or a realization of its own full legal authority, or the legal imagination, to ask for the full transcripts. As a dissent in the ICJ decision revealed, there was ample evidence of intent from the systematic pattern of acts by Serbia all over Bosnia, but the lack of this unequivocal bit of evidence allowed the Schabas theory of “only intent” to absolve Serbia and for justice to be denied the victims.
Professor John Packer, for his part, expressed his palpable discontent over the fact that the ICJ – the international court of, for and by the (UN member) states – has not factored in or made any provision for the participation of the victims of Myanmar’s international state crime in alleged violations of the Genocide Convention, a binding inter-state treaty. He pointed out that the essence of these international legal efforts at the ICJ and the ICC should seek justice for the wronged communities.
Besides, the ICJ has enormous power that it does not use to ensure that victims are properly represented in The Gambia vs Myanmar genocide case. The panelists observed that while the ICC makes dedicated efforts to hear victims’ voices and accord them a meaningful role in the criminal proceedings, there is no similar effort by the ICJ which historically has not played such a role. There was the suggestion that such efforts should be made by the ICJ in this case. Panelists noted that the ICJ could be making Myanmar’s 6-monthly periodic reports on implementation of provisional measures available to the public, which is a step that numerous Rohingya groups have requested in response to which the ICJ has so far taken no action.
Packer reminded Rohingya viewers and their activist supporters that The Gambia vs Myanmar is a dispute between two states and that The Gambia essentially follows what its lawyers decide as their priorities; neither The Gambia nor their lawyers represent the Rohingyas. This fact in turn necessitates a wider Rohingya-focused campaign to seek justice, as the victims see fit. In this respect, the Rohingya need their own voices to be heard through their own representatives. Packer also called for many more of the 152 states parties to the Genocide Convention to engage vigorously in The Gambia vs Myanmar case at the ICJ in order to use the process to draw international attention to the ongoing situation and to expose the responsibility of Myanmar.
With respect to the ICC, Stanton pointed out that the genocide is “not even on the agenda of the ICC” insofar as its investigation of Myanmar’s crimes. Dr Southwick stated that, like the ICJ case, the ICC case will likely take several years to complete, if it can be completed. The ICC is currently in the investigation phase, at the end of which the Prosecutor could request the Court to issue one or more arrest warrants, which would be difficult to execute when Myanmar (which is not a party to the Rome Statute) is not cooperating – notwithstanding the duty of other states parties to “cooperate fully”.
Having weighed in on this vital issue of justice in the wider, beyond-judicial sense, Dr Southwick urged human rights campaigns to leverage these international legal accountability efforts beyond the physical confines of the courts in The Hague. She stressed both moral and legal obligations of various states and even the Security Council. The specialist on the international rule of law argued that while Myanmar is clearly the perpetrating state other UN member states which are hosting sizeable Rohingya populations need to uphold various legal and moral principles in dealing with large scale refugee populations on their soil. Some of the host countries such as Bangladesh (and Malaysia) ought to start local integration schemes, instead of trampling on the rights of Rohingyas both as refugees and human persons.
Additionally, she argued that even the persistent calls for various UN instruments to refer Myanmar to the Security Council are morally important if only such calls – and expected vetoes by China and Russia – shine the light on the unconscionable failures of Russia and China.
The panelists were also painfully aware that the current Security Council and its veto system has largely failed victim communities around the world, from Palestinians and Khmers and predominantly Muslim Cham of Khmer Rouge Cambodia to present-day Uyghurs, in addition to Rohingyas and many others. For leading UN member states such as USA and China themselves have acted criminally or provided blanket impunity to their pet clients, or proxy states, when the latter commit international state crimes (for instance, the case of the officially Jewish state of Israel against the Palestinians) since the Holocaust ended 70 years ago.
Don’t give up! Our hearts are with you
Looking at ways to leverage these UN judicial mechanisms, Professor Stanton was strongly in favour of taking Facebook (which provided an extremely effective platform for hate and genocidal racism against Rohingyas) to court for its criminal responsibility and to seek financial compensation for the Rohingya survivors by the billions of US$.
The discussions ended with the panelists’ humanistic pledge of solidarity to Rohingya survivors of the Myanmar genocide, above and beyond the call of one’s own legal or professional background.
Their message: “Don’t give up! Our hearts are with you.”
Banner Image: Bangladesh – 2019: Daily life of Rohingya refugees at their temporary home made of bamboo at balukhali camp. Image: NAUFAL ZAQUAN / Shutterstock.com